Regina v Shabir Khan

For graduated-fee purposes, successive indictments uploaded during the preparation and conduct of one trial ordinarily constitute an iterative amendment process and one case. The fact that earlier indictments remain extant, or are later quashed as housekeeping, does not itself create entitlement to separate fees. A second fee may be claimed where the indictment has been severed so that the defendant faces separate trials, or where the indictments involve genuinely distinct criminality, as in a case requiring the prosecution to start again. Modern digital case-management practices do not alter that distinction. An out-of-time claim also requires exceptional circumstances where the applicable regulations impose that higher threshold.

Harris Solicitors and Eldwick Law appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013. They acted for Kamran Shabir and Jhazeb Khan in a multi-defendant Crown Court trial involving four successive indictments, B1 to B4, uploaded to the Digital Case System.

Some defendants pleaded guilty and the prosecution offered no evidence against Shabir. After sentence, the trial judge was asked to quash the earlier indictments, while other counts were left on the file. The solicitors claimed separate cracked-trial fees for indictments B1 to B3. The determining officer rejected Shabir’s claim as out of time and Khan’s claim on the merits. The central issue was whether the successive indictments represented separate cases or amendments within one case for graduated-fee purposes.

1. The appeals were dismissed. The successive indictments did not entitle the solicitors to more than one graduated fee.
2. The relevant question was whether the defendant faced one iterative indictment or genuinely separate cases. Unless the indictment had been severed so that the defendant had to face two separate trials, or there was something equally distinct about the indictments, successive amendments up to and including trial constituted one case.
3. The changes between B1, B2, B3 and B4 did not create distinct criminality for these defendants. The addition of Shabir and the later removal of defendants from one count were changes of the kind properly accommodated by amendment. The additional count concerned another co-defendant and did not alter the appellants’ position.
4. R v Jessemey [2021] EWCA Crim 175 did not assist. That case required formal disposal of an extant indictment because the preferred indictment did not contain the offence on which sentencing had taken place. Here, all counts faced by the defendants were before the court on B4. Even if earlier indictments contained distinct criminality, they could still be treated as an iterative amendment process.
5. R v J [2018] EWCA Crim 2485 supported treating modern indictment versions as amendments where appropriate. By contrast, R v Sharif (168/13) illustrated the distinct situation in which an indictment was quashed and the prosecution had essentially to start again, permitting two fees. Such cases were likely to be rare and were not equivalent to proliferation of digital indictment versions.
6. The Shabir appeal also failed on the alternative limitation issue. The three-month period had expired by several months, no extension had been requested within that period, and the solicitors did not establish the exceptional circumstances required by the 2013 Regulations.

High Court (Senior Courts Costs Office): Costs Judge Rowley dismissed the appeals from the determining officers’ decisions. The court decided the fee issue against both appellants and additionally concluded that Shabir’s claim was out of time without exceptional circumstances.